Nozick, Rawls and Rights in the UNDHR
onsider the following list of rights as stated in the United Nations Universal Declaration of Human Rights (UDHR):Article 22
Everyone, as a member of society, has the right to social security and is entitled to realization, through national effort and international co-operation and in accordance with the organization and resources of each State, of the economic, social and cultural rights indispensable for his dignity and the free development of his personality.Article 23
Everyone has the right to work, to free choice of unemployment, to just and favorable conditions of work and to protection against unemployment…Everyone who works has the right to just and favorable remuneration ensuring for himself and his family an existence worthy of human dignity, and supplemented, if necessary, by other means of social protection.Article 24
Everyone has the right to rest and leisure, including reasonable limitation of working hours and periodic holidays with pay.Article 25
Everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing and medical care and necessary social services, and the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control.Article 26
Everyone has the right to education. Education shall be free…elementary education shall be compulsory.Do we as humans and citizens of a state have the legal right to various forms of social security? Is there such a thing as a right to food, vacation, medical care, unemployment benefits, paid holidays and an “existence worthy of human dignity”?Drafted on December 10, 1948 the United Nations UDHR adamantly asserts affirmative responses to the aforementioned questions. The declaration, which has never been ratified by the U.S. Senate, is largely viewed by academics, many national governments, and international human rights organizations as the bedrock of modern human rights documents.For all its popularity and nearly universal acceptance, the document is riddled with intellectual gaps and inconsistencies. There is little to no justification for the “rights” contained within, other than occasional appeals (without requisite validation) to shared human characteristics and experiences such as all humans being free, equal to one another, worthy of dignity, and “endowed with reason and conscience”. The other chief rationale is ad hoc pragmatism: in an effort to curtail the “barbarous acts which have outraged the conscience of mankind” following World War II, specific measures tantamount to those enumerated in the UDHR are presumed to be both sufficient and necessary conditions for proper human existence and normative guidelines for governments and citizens.Several key problems exist with this vision. First, as previously stated, these listed rights desperately lack robust explanation within the document. The philosophy of John Rawls introduces theories that, outside the parameters of the declaration, provide a fairly comprehensive defense, yet he did not devise them until more than 20 years after the drafting of the document. Despite wide acceptance as an authoritative source, the UDHR relies heavily on (or is most closely associated with) a system that establishes human rights as positive obligations of the state and other people. Second, it is not clear how these “rights” are to be properly accounted for in governments that lack adequate provisions. Any medical care, much less having it paid for by the government, amounts to fantasy in the poorer regions of the world.There are alternative conceptions of rights. Most notably, those ideas introduced by philosopher Robert Nozick offer a vigorous defense of negative rights obligations in a “minimal state.” Nozick argues nothing beyond the most minimal of state functions are ever justified, and further, that rights exist only as those actions which someone cannot be prohibited from taking or having, but not what services are necessarily owed by others. Nozick is arguably more realistic about the state’s role in providing services deemed rights by the UDHR, yet he is saddled with numerous philosophical problems as well. So how do Rawls and Nozick account for justice and human rights?Rawls and RightsAccording to Clive Crook of Atlantic Monthly, Rawls believed the following about justice:
Imagine that you are asked to choose the basic rules by which society will be run, but without knowing anything about your personal circumstances – how intelligent you are, what talents you have, how rich your parents are, and so on. Rawls argues that from behind this “veil of ignorance” you would choose two key principles. Those two necessary principles are the liberty principle and the difference principle. The liberty principle holds that people would require minimal civil and legal rights to protect themselves. The difference principle states that everyone would want to live in a society where improving the condition of the poorest becomes the first priority since behind the “veil” anyone could potentially fall into that category. A society is just if it satisfies these conditions.For Rawls, a right is an “entitlement or justified claim on others.” These require both negative and positive obligations, meaning that others are required to not harm anyone (negative obligation) and surrender portions of their earnings for the benefit of low-income earners (positive). While “rights” are not the same as “duties”, the line is certainly blurred in the Rawlsian view. If a person has the right to free medical care, then others (most likely the government) would be obligated to provide that service. Imagine that there is a massive shortage not of doctors, but of hospital staff such as nurses. Also imagine that some massive natural disaster were to strike, killing and injuring thousands. Hospitals would be swamped with ordinary citizens seeking treatment. Yet, the hospital would be completely unable to cope with the huge demands. If, as the government mandated, healthcare were to be provided to all, then they would be responsible for ensuring that end. The government could take a number of actions, chief among them some form of a volunteer recruitment, but even a draft if necessary. That automatically implies someone would be doing something against his or her will for the good of another. Admittedly, some of this scenario is far-fetched, but there is proof that similar actions have been taken by the government: the massive military draft during the Vietnam War where 58,000 Americans were killed for objectives that were never achieved. This violates Rawls’s own liberty principle.Under the rubric set by Rawls, the rights listed in the UDHR are, on the face of it, justified. It is true that the right to food and free medical care perhaps require more independent justification, but they are at least in concert with the “spirit” of what Rawls maintains: basic civil liberties coupled with prerogatives on the behavior of others for the betterment of everyone, particularly the poorest is the only just society.Some would object to the demands of achieving a society, but Rawls, widely regarded as a very compassionate and strong humanist, would not. Crook notes:
Rawls was often described as “left of center.” That is putting it mildly. His idea of the just society goes far beyond what any mainstream American liberal would ever dream of proposing…the Rawlsian idea of fairness actually goes far beyond what any European socialist party, to say nothing of the Chinese Communist Party, would nowadays propose. Rawls would perhaps agree that in a freer market, more wealth can be created and goods and services can be produced more efficiently. But he consistently argued none of that really mattered. What was more important was the state of the poor, their lot in life. The fact that people had a greater potential for wealth meant nothing as long as there are homeless families struggling to survive. In fact, the contradiction in those lifestyles between rich and poor found in wealthy countries only gave Rawls fuel for his argument. Thus, arguing market liberalization is borderline meaningless.As we will see, however, these definitions and the corresponding realities that result from their implementation differ greatly from the libertarianism devised by Nozick.Nozick and RightsNozick rejects nearly all of what Rawls theorized. For Nozick, nothing beyond the most “minimal” state can ever be justified. Nozick argued that there are two competing theories of justice: historical and end-state. According to Nozick, Rawls was an end-state theorist of justice meaning that he looked at the outcome of transactions to ensure “at the end” everyone was equal. The obvious criticism is that it does not matter how the redistribution from citizen to citizen takes place so long as everyone is equal in the end. Therefore, if person A has $75 and person B has $125, and A steals $25 from B, they will be ultimately equally rich. Yet, as Nozick asked, is it really permissible for theft to be a proper form of redistribution? Further, it is unclear who properly decides what mechanism will control redistribution. To Nozick, the government is not necessarily the final authority on the matter.The opposite of an end-state theory is a historical theory, or a theory that analyzes the past to determine how a pattern of distribution was achieved and to conclude if that pattern is just or not. There are then two types of historical theories: patterned and unpatterned. A patterned historical theory distributes according to a given pattern, e.g. “to each according to his own.” An unpatterned historical theory may or may not allow patterns, so long as the pattern is one that is enacted by legitimate means. Moreover, there has to be the capacity to change or add new patterns that are in accordance with moral norms. This is important because if a society is maintaining a pattern of distribution that is unjust according to Rawls’s difference principle, then there is an infringement of people’s basic liberty.Nozick has developed an entitlement theory to determine if exchanges between people are legitimate. The first of the three categories is the transfer principle, which holds that goods or services “freely acquired from others who acquired them in a just way are justly acquired.” Second is the acquisition principle that states that people are entitled to holdings initially acquired in a just way. Finally, the rectification principle, which requires that any violation of the first two principles be repaired by returning holdings to their rightful owners, or a “one time” redistribution to the Difference Principle. Clearly, Nozick favored far more a free-market exchange where the government simply served the most minimal function of ensuring contracts between consenting individuals was maintained and general security is provided. Extravagant “big government” services are nowhere to be found in Nozick’s minimalist vision.What we arrive at is one of Nozick’s chief criticisms of Rawls: his liberty principle and difference principle are fundamentally at odds. If the difference principle holds that we must transfer some goods from the more advantaged to the least advantaged, then the government is entitled to take from people a unjust distribution to make a more just one. But that conflicts the with liberty principle since the means that Nozick underscores are unjust.Nozick, therefore, believes rights are primarily negative obligations on others. He principally believes people require fundamental autonomy and that a just society does as much as possible to protect that separation. However, what is often over-looked is that point of negative obligations: to be allowed to take action for the benefit of one’s self. While indeed there are negative obligations, there is the openness for the individual to take action. For example, rights are also goal-oriented or teleological: the right to the pursuit of happiness is the freedom to take those actions, so long as they do not infringe upon the rights of others, that better one’s life according to one’s desires. A person is not guaranteed any more fundamentals than the freedom to pursue those ends, a great contrast to Rawls where basic fundamentals of physical existence are at least theoretically furnished.A final important feature of Nozick’s philosophy is his strong emphasis on property rights. He argues that property is not merely an object that one owns, but since it is owned, is a part of that person’s autonomy. When that property is damaged, stolen or violated in some form, that person’s rights have been violated. Nozick asserts that if people are to have true liberty, there can be no restrictions on any individual’s property holdings. Modern economists such as Hernando de Soto, while not necessarily sharing Nozick’s view, certainly add weight to Nozick’s argument by demonstrating the positive empirical data that comes from countries with robust property rights.Nozick would take extreme exception to many of the articles in the UDHR. By his logic, free medical care, social security for all, paid vacations and other provisions would be wholly unjust. There would be no justification for much of those programs since it is to be expected the wealthier citizens would object to the taxation that is required to fund the programs that they would likely abstain from, thus violating Rawls’s own liberty principle and Nozick’s transfer principle.But Nozick’s ideas suffer from an extreme libertarianism. Clive Crook from Atlantic Monthly rightly states that in Nozick’s theories there are no reasonable regulatory measures to protect the poor, “No safety nets at all – extremes of wealth and poverty that would make Saudi Arabia blush.”What is the answer?The UDHR, as Nozickian philosophy underscores, is in need of serious revision. There is much to be applauded in the document: its humanity, emphasis on gender equality and familial relationships. However, its prescription for achieving those ends by simply demanding them as rights where often there is no ability of the state to deliver them (and thus, asking for them is to do so in a vacuum) is categorically ludicrous. Morally, the document is at odds by prohibiting slavery and asking for servitude. Even if the demeanor of the document is pleasant and the objective noble when it requires servitude, the work performed is still involuntary. The document means well by encouraging cooperation, but eventually succumbs to forced participation.Nozick’s answers are far more plausible and have stronger empirical backing. But a Nozickian society is still filled with problems.A more reliable and fruitful government policy would likely combine Rawls’s empathy with Nozick’s rights-based system. There is enough empirical data at the present time to conclude that Nozick’s heavy emphasis on property rights is not overblown. Yet, to have a society with no safety nets for the poorest is extraordinarily inhumane. Asking private charity to pick up the slack amounts to nothing more than wishful thinking. As Crook wisely observers, “No democracy is ever going to vote for a Nozickian society, any more than it will for a Rawlsian one.”
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